BROWN v R [2022] NZCA 413

BROWN v R [2022] NZCA 413 [31 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA113/2022[2022] NZCA 413BETWEEN SKYE DESTINY BROWNAppellantAND THE QUEENRespondentCA204/2022BETWEEN MANAIA SEW-HOYAppellantAND THE QUEENRespondentHearing: 14 July 2022Court: Dobson, Peters and Downs JJCounsel: N M Dutch for Appellant BrownB J Hall for Appellant Sew-HoyJ E Mildenhall for RespondentJudgment: 31 August 2022 at 11.00 amJUDGMENT OF THE COURTA The extension of time in CA204/2022 is granted.B The appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Downs J)[1] Skye Brown and Manaia Sew-Hoy were convicted of aggravated robbery inrelation to an intellectually disabled complainant.1 Ms Brown was also convicted ofkidnapping the same complainant.2 Both Ms Brown and Mr Sew-Hoy received termsof imprisonment.3 Both appeal their conviction and sentence.4[2] Mr Sew-Hoy's notice of appeal was filed on 28 April 2022, some 20 workingdays out of time. The point was not taken at any stage, probably because the appealsrelated to short terms of imprisonment and there was good reason to have both appealsheard together. The Court of Appeal (Criminal) Rules 2001 provide that a notice ofappeal filed out of time is to be treated as if it includes an application for an extensionof time.5 In these circumstances we grant the necessary extension of time forcommencement of his appeal.Background[3] The complainant suffered a brain injury when he was almost two years old.Consequently, the complainant has an intellectual disability, visual and hearingproblems, and other difficulties.[4] The complainant met Ms Brown through church. He thought her a friend.That said, the complainant had left Ms Brown apparently stranded in more than oneplace because she can be "a bit too much".[5] The offending occurred on 10 February 2020, in and around Tauranga.6The complainant was at the Welcome Bay roundabout, when another car pulled upbehind his. Ms Brown got out of that car, into the complainant's. Ms Brown told the1 Crimes Act 1961, ss 235(b) and 66.2 Section 209(b).3 R v Brown [2022] NZDC 3370 [Sentencing notes]. Ms Brown was sentenced to two years andnine months' imprisonment. Mr Sew-Hoy was sentenced to two years and five months'imprisonment.4 Criminal Procedure Act 2011, ss 229 and 244.5 Court of Appeal (Criminal) Rules 2001, r 12.6 The complainant was then aged 28.complainant to follow the other car, which drove to a nearby Caltex service station.The complainant did. He was worried he was going to be "rolled".[6] At the Caltex service station, the driver of the other car — Aiden Roberts —got into the front passenger seat of the complainant's car. Ms Brown moved into theback seat of his car. Mr Roberts told the complainant to drive to Pāpāmoa. He did.[7] Mr Roberts began rummaging through the complainant's belongings andholding onto them.[8] Mr Roberts told the complainant to stop his car under a tree near the beach.The complainant complied. The other car arrived and parked behind thecomplainant's. Mr Roberts then threatened to chop up the complainant and spread hisbody parts along the beach. Mr Roberts told the complainant to swap seats. Again, thecomplainant complied. Mr Roberts produced what the complainant described as a"mini axe". Mr Roberts repeatedly struck the steering wheel with the weapon.Mr Roberts said he was going to take "everything".[9] Ms Brown was in the back seat or by the complainant's car while Mr Robertsmade these threats.7 Mr Sew-Hoy was either in the complainant's car or the other car.We return to this topic later.[10] Someone asked the complainant how much money he had. He was told to usehis phone to access his bank account. Mr Roberts then used the complainant's phoneto transfer $200 between accounts, so money could be withdrawn from an ATM.Thereafter, Mr Roberts drove the complainant's car, with the complainant in the frontpassenger seat.[11] Both cars went to a second service station, then an ATM at Papamoa Plaza.Ms Brown said, "we'll go and get the money out". The complainant's evidence wasnot entirely clear on who withdrew $240 from his account. In his evidential interview,the complainant said Ms Brown did; likewise, the "guy with the big eyes". But, in7 In his evidential interview, the complainant said Ms Brown was in the back seat. In cross-examination, he said Ms Brown was "by the white car"; that car being his. It was put to thecomplainant that Ms Brown was in the other car. The complainant said, "no".cross-examination, the complainant said Mr Roberts was the only person who did so.The group then purchased cigarettes from a dairy.[12] The group then went to a PostShop; Mr Roberts had told the complainant tochange the ownership of his car to him. Ms Brown and Mr Sew-Hoy went inside thePostShop with the complainant, where they tried to put the car into Mr Roberts' name.The transaction was declined because of an absence of identification.[13] The complainant was then driven some more. He was ultimately dropped neara McDonald's restaurant, and walked home. The entire sequence took at least two anda half hours. The complainant's car was taken. So too, of course, were $240 andseveral items of personal property.[14] Police were promptly involved but none of the complainant's property wasrecovered. Ms Brown was arrested on 26 February 2020. She said she knew thecomplainant but otherwise remained silent. Mr Sew-Hoy was arrested on 5 June 2020.We discuss his police interview later. Mr Roberts pleaded guilty to an offence ofaggravated robbery in relation to the complainant.Conviction appeals[15] Ms Brown and Mr Sew-Hoy were convicted after a jury trial beforeJudge Cameron. They appeal their convictions on a number of grounds. This Courtmust allow the appeal if satisfied that the jury's verdicts were unreasonable,8 or that amiscarriage of justice has occurred for any reason.9 A miscarriage of justice is definedas an error, irregularity or occurrence in relation to or affecting the trial which hascreated a real risk that the outcome of the trial was affected, or which has resulted inan unfair trial.108 Criminal Procedure Act, s 232(2)(a).9 Section 232(2)(c).10 Section 232(4).The kidnapping charge[16] The trial began on 6 December 2021. Immediately before trial, the Judgeallowed the Crown to add a kidnapping charge against Ms Brown.11 The charge alsonamed Mr Roberts as a kidnapper.[17] The Judge granted the Crown's application on the bases Ms Brown would notsuffer prejudice and existing evidence disclosed the charge.12 This introduces the firstground of appeal, which concerns Ms Brown only.[18] The Crown first signalled it would apply to add the charge on26 November 2021 (at a hearing directed at another purpose). It filed and served therequisite application on 29 November 2021.[19] On behalf of Ms Brown, Mr Dutch contends the interests of justice did notfavour an additional charge. He observes no explanation was provided for its lateness,and the likely one involves tactical considerations; the correspondence accompanyingthe application said the Crown would accept a guilty plea "to only theaggravated robbery". Mr Dutch argues Ms Brown was placed under "unfair pressure"to plead guilty shortly before trial. So, taken together, she has suffered a miscarriageof justice.[20] We consider it was open to the Judge to allow the Crown to add a charge ofkidnapping, and for the reasons he gave. The charge was available on the existingevidence as the sequence disclosed an ongoing, unlawful detention of thecomplainant.13 Ms Brown suffered no prejudice beyond that inherent in any additionalcharge, for the Crown's case against her remained exactly as it was.[21] We acknowledge the possibility the charge might have been motivated by ahope of resolution but see nothing improper in the circumstances. In particular, we donot consider the number or nature of the charges to have been "inflated to increase the11 R v Brown [2021] NZDC 24306 [Charge amendment decision].12 At [2]–[3]. The relevant provisions governing such an application are Criminal Procedure Act,ss 133 and 191; and Crown Prosecution Regulations 2013, reg 6(2).13 Crimes Act, s 209(b).likelihood of an offer by the defendant to plead guilty to lesser charges"14 because thedetention of the complainant was integral to the sequence of the offending and, unlikeevery other defendant, Ms Brown knew the complainant. Ms Brown was, therefore,aware of the complainant's vulnerability when she got into his car and directed him tofollow the other car, from which all else followed. Moreover, the complainant saidMs Brown explained the offending as it unfolded: she said it was happening becausehe had abandoned her in Lower Hutt and other places. In short, we consider it wasopen to the Crown to signal Ms Brown as the primary defendant on trial by adding thekidnapping charge.15Unreasonable verdicts?[22] Ms Brown and Mr Sew-Hoy contend the guilty verdicts in relation to theaggravated robbery charge are unreasonable.16 A verdict will be unreasonable if,having regard to all the evidence, the jury could not reasonably have been satisfied tothe required standard that the defendant was guilty.17 There are several aspects to thisargument, and some elaboration is needed.[23] We begin with the charge, which was framed this way:Charge 2Aggravated robberySections 235(b) & 66Crimes Act 1961MANAIA SEW-HOY and SKYEDESTINY BROWN together with AIDENMARK ROBERTS robbed [thecomplainant]Particulars: $240.00 cash, iPhone, driver'slicence, Sony car stereo, Garmin GPS,vaping device and / or a Mazda motorvehicle registration LCU125.[24] Robbery is theft accompanied by violence or threats of violence, to any personor property, used to extort the property stolen or prevent resistance to its being stolen.18Aggravated robbery can occur in several ways, including when a person,14 Crown Law Solicitor-General's Prosecution Guidelines (1 July 2013) at [8.2].15 As noted at [14] above, the other lead offender, Mr Roberts had pleaded guilty to aggravatedrobbery.16 Criminal Procedure Act, s 232(2)(a).17 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].18 Crimes Act, s 234(1)."being together" with another, or others, robs someone.19 So, aggravated robberyrequires proof of theft and accompanying violence or threats of violence (to extort theproperty or prevent resistance to its being stolen) by two or more peoplebeing together. The theft and violence need not be contemporaneous, but there mustbe a nexus between them for a charge of robbery or aggravated robbery to be madeout.20[25] Ms Brown and Mr Sew-Hoy contend they could not have been guilty ofaggravated robbery because on their analysis, the theft of the complainant's car andother items of property ended once Mr Roberts had apparent control of the car andother items at Pāpāmoa beach. On this argument, anything said or done thereafter byMs Brown or Mr Sew-Hoy — for example, going into the PostShop to change theownership of the complainant's car into Mr Roberts' name — could not establishaggravated robbery as the underlying theft had long since ended. In other words, therecould be no accompanying violence in the sense explained above.[26] The leading case on when theft ends is this Court's decision in R v Maihi.21The Court said:22A threat may have a continuing effect which is still operating when goods arehanded over. The act of [theft] itself may not have ceased and if, as a matterof common sense, the jury found that the accused was still in the process ofstealing the item when the violence or threat of violence was employed, theywould be entitled to find that robbery was completed at that point.The Court referred approvingly to the English decision of R v Hale,23 in which anargument that theft was necessarily an instantaneous act was rejected.24[27] Also important is this Court's recent decision in R v Tahana.25 In that case,Mr Tahana entered a liquor store and picked up two bottles. He walked towards somefridges near the store entrance, then outside, with both bottles. The attendant19 Section 235(b).20 R v Maihi [1993] 2 NZLR 139 (CA) at 141.21 R v Maihi, above n 20.22 At 141 (citation omitted).23 At 141, citing R v Hale (1978) 68 Cr App R 415 (CA).24 R v Hale, above n 23, at 418.25 R v Tahana [2021] NZCA 497, (2021) 29 CRNZ 1002.confronted him outside the store. The Crown alleged Mr Tahana turned and presenteda knife. The attendant backed away.[28] The Court in Tahana affirmed Maihi and Hale. It said "a theft by taking may,depending on the circumstances, be a continuing act".26 It gave the example of anitem "being stolen" while it was carried through the store: a jury could find, "as amatter of common sense, that it is still in the process of being stolen up to the pointwhere it is removed from the premises".27 The Court said that "[a]t any point in thatprocess, it would be quite natural to say 'they are stealing' the item".28 And, if theperson were accosted in the store and responded with violence or the threat of violence,"it would be natural to say that the item was still in the process of being stolen, andthat the violence accompanied the theft".29[29] This approach was considered consistent with the purpose of the offence ofrobbery, which penalises more severely theft committed through the use or threat ofviolence.30 The Court said the concern is engaged when "a defendant goes into a storeand demands that an employee hand over an item behind the counter, and threatensviolence if they do not comply".31 The concern is "equally engaged [when] thedefendant threatens violence to enable the defendant to complete the process of takingthe item from the store, after taking it from a shelf".32 It followed no "principleddifference" existed between these scenarios.33[30] However, the Court said a point would be reached "when, on any view, theitem has been stolen".34 Violence thereafter would give rise to a separate offence,rather than robbery or aggravated robbery.3526 At [40].27 At [41].28 At [41].29 At [41].30 At [42].31 At [42].32 At [42].33 At [42].34 At [44] (emphasis in original).35 At [44].[31] The Court held the bottles taken by Mr Tahana could constitute an ongoingtheft "while they were carried through the store, and out the door".36 But, onceMr Tahana was outside the store, "the theft was complete".37 It followed Mr Tahana'salleged threat of violence with the knife "did not accompany the theft", for by thattime, the theft had ended.38[32] The Court said that:39In some cases it will be a matter for the jury to decide whether an item wasstill in the process of being stolen, and whether the violence accompanied thetheft, or whether the theft had been completed and the item had beeneffectively stolen.[33] In light of these principles, we consider it was open to the Crown to assert, andfor the jury to find, that the theft of the complainant's property was a continuing act ortransaction which did not end until the defendants dropped the complainant outsidethe McDonald's restaurant. We make six overlapping observations.[34] First, until he was dropped outside the McDonald's restaurant, the complainantremained in immediate proximity of all of his property. Indeed, the complainant had,until then, been in his own car. The balance of the complainant's property remainedwithin reach, albeit presumably in the apparent possession of Mr Roberts.[35] Second, if, by chance, police had intervened at any point before thecomplainant was abandoned at McDonald's, it would have been open to every memberof the group to assert they had no intention to permanently deprive the complainant ofany his property, and their continued association with him was evidence of that.That explanation would almost certainly have precluded a successful charge ofaggravated robbery, because any or all of the property could have been returned to thecomplainant immediately.[36] Third, expressed in terms of Maihi and Tahana, it seems to us that as "a matterof common sense" everything was still in the process of being stolen until the group36 At [50].37 At [50].38 At [50].39 At [44].dropped the complainant at McDonald's, for only then did the group truly have controlof the complainant's property. Expressed yet another way, until then, his property hadnot really been taken. That the complainant was still being detained underscores thisanalysis.[37] Fourth, it is beyond argument Ms Brown and Mr Sew-Hoy went into thePostShop with the complainant in an attempt to have him transfer ownership of his carto Mr Roberts — all three are shown in CCTV footage at the counter, dealing with amember of staff. To borrow the language of Tahana,40 "it would be natural to say thatthe [car] was still in the process of being stolen, and that [Mr Roberts' earlier] violence[still] accompanied the theft".[38] Fifth, for these reasons, we see nothing objectionable in the charge referring todifferent items of property. A charge for each item would have needlessly complicatedthe trial and been heavy-handed. In fairness, neither appellant argues otherwise.[39] Sixth, we consider Tahana readily distinguishable on its facts. The theft in thatcase ended once the bottles were taken outside the store. That analysis reflects thesetting in which the offending took place. We are not concerned here with a storesetting or its functional equivalent.[40] This leaves other aspects of this ground of appeal. Mr Dutch contends therewas inadequate evidence of a common intention to rob the complainant. On behalf ofMr Sew-Hoy, Mr Hall advances the same contention. Both stress the offending cannothave been premeditated, as the group encountered the complainant by chance at theWelcome Bay roundabout when their car was behind his.[41] Given the totality of evidence, including what each member of the group saidand did, we consider it was open to the jury, acting reasonably, to conclude acommon intention existed to rob the complainant. We take this view based on thefollowing facts:40 At [41].(a) Ms Brown got into the complainant's car and directed him to follow theother car, which then stopped at the Caltex service station.(b) At the Caltex service station, Mr Roberts got into the front passengerseat of the complainant's car. Ms Brown moved into the back seat.Mr Roberts told the complainant to drive to Pāpāmoa. The rest of thegroup followed in the other car.(c) Mr Roberts told the complainant to stop his car under a tree near thebeach. The other car arrived and parked behind the complainant's car.(d) There, Mr Roberts explicitly threatened the complainant with violence,including by use of a weapon. He said he was going to take"everything".(e) Throughout the events described in (d) above, Ms Brown was in theback seat of the complainant's car or by his car.(f) As observed, Ms Brown and Mr Sew-Hoy accompanied thecomplainant into the PostShop, and there attempted to have himtransfer ownership of his car to Mr Roberts.(g) At some point, Ms Brown said the offending reflected thecomplainant's abandonment of her in Lower Hutt and other places.(h) In his police interview, which we foreshadowed at [14] above,Mr Sew-Hoy made significant admissions to police.41 Mr Sew-Hoysaid they saw the complainant driving; Ms Brown said she knew thecomplainant; and Mr Roberts told her to get into the complainant's carand make him follow them. Then, on the way to the Caltex servicestation, Mr Roberts was saying he was going to take "whatever"Mr Roberts wanted. Mr Sew-Hoy described Mr Roberts this way: "hismindset [was] whatever he got it's mine". Mr Sew-Hoy said there had41 These were evidence against him only.been an issue between Ms Brown and the complainant; he understoodthe complainant had taken her "stuff". Mr Sew-Hoy elaborated:"Like he had his clothes, her clothes, her onesies. All that kindaweird stuff". This exchange then occurred:WM: And so [Mr Roberts] decided to take everything from[the complainant]?MS: Mm yeah basically.WM: And that's what he's, that's what he's told, told youguys.MS: Yeah.WM: Before all this has kicked off.MS: Yeah, yeah kinda like Where everything,everything he owns is mine.The interview continued. Mr Sew-Hoy said once they arrived at thebeach, he knew of the "negotiations" in relation to the taking of thecomplainant's phone and money. Mr Sew-Hoy said Mr Roberts was"the main instigator, he made us do all that". He said Mr Roberts andanother went with the complainant to the ATM. Mr Sew-Hoyacknowledged going into the PostShop to "get ownership of the car".He said he was under the influence of methamphetamine at that time.Mr Sew-Hoy acknowledged knowing the complainant had "adisability". He said the complainant was crying, and he told him notto. Mr Sew-Hoy added he "kinda felt like yeah fuck oh what could I[have] done you know he's, he's just sitting there crying, his phone'sgone, his car's you know [been taken] over by someone he doesn'tknow". Mr Sew-Hoy said, "I feel you know some kind of remorse".(i) Finally, there is no evidence Ms Brown or Mr Sew-Hoy expressed anysurprise at what was occurring or sought to disassociate themselves inany way from the offending. Neither appellant testified.As will be apparent, we also consider it was open to the jury, acting reasonably, toconclude Ms Brown and Mr Sew-Hoy shared the common intention to rob thecomplainant.[42] This leaves a final point in relation to this ground of appeal.42 Mr Hall contendsthe evidence is equivocal as to whether Mr Sew-Hoy was inside the complainant's carat the beach or in the other car, as Mr Sew-Hoy also told police. Mr Hall contends thejury should, therefore, have had a reasonable doubt about his guilt.[43] We accept the complainant's evidence on whether Mr Sew-Hoy was inside hiscar or the other car is difficult to follow, as it turns on the complainant's description ofa "skinny guy", in circumstances where there appears to have been more than one malewithin the group who fitted this description. However, in light of our discussion from[44] below, the jury did not need to be sure Mr Sew-Hoy was inside the complainant'scar; rather, they needed to be sure Mr Sew-Hoy was present when Mr Robertsthreatened the complainant.[44] It was open to the jury to be sure of this aspect. Mr Sew-Hoy told police hewas present: Mr Sew-Hoy said he was in the other car, which was parked behind thecomplainant's. Moreover, as observed, Mr Sew-Hoy accepted being aware of what hedescribed as "negotiations" between Mr Roberts and the complainant in relation to thelatter's property. In context, the jury could legitimately conclude this was aeuphemism for Mr Roberts' threats of violence to the complainant given the balanceof Mr Sew-Hoy's police interview and other trial evidence.[45] For completeness, we accept Ms Mildenhall's submission on behalf of theCrown there is no reasonable possibility the "being together" requirement ofaggravated robbery was not established on the evidence, a point not taken by eitherappellant. This element was discussed by this Court in Deys v R.43 It held physical42 Neither Ms Brown nor Mr Sew-Hoy contends the question trail contained error or was defectivein any way. Neither challenges the correctness of the summing up.43 Deys v R [2018] NZCA 567.distance between the robber and one or more associates when the robbery occurs isnot determinative of the "being together" element.44 Or, as the Court observed:45The second participant (as well as any additional participants where there aremore than two) must be physically proximate to an extent that his, her or theirpresence operates to support or heighten the threat to the victim.The involvement of such participants needs to be immediate in the sense thatthey share a common purpose of confronting the victim with the threat of and,if the circumstances require, actual use of violence to facilitate the taking ofthe victim's property.[46] Mr Roberts was, obviously, the main offender. He was inside thecomplainant's car, with the complainant, at the beach. There, Mr Roberts threatenedthe complainant with violence. Ms Brown was in the back seat of the complainant'scar or by his car while Mr Roberts did so. It follows the jury could be sure a secondparticipant — Ms Brown — was physically proximate to an extent her presenceoperated to support or heighten the threat to the complainant.46 In other words, thejury could be sure there were two or more people "being together" in the sense requiredwhile the complainant was threatened with violence at the beach.[47] That this issue was not live at trial (or on appeal) is hardly surprising; neitherappellant made a sustained attack on the complainant's evidence or the Crown casemore generally. Indeed, the real trial issues were twofold only: was there acommon intention to rob the complainant? If so, did Ms Brown and Mr Sew-Hoyshare that? Again, we consider it was (well) open to the jury to answer yes to both ofthese questions according to the criminal standard of proof beyond reasonable doubt.The Judge's supplementary direction to the jury[48] When summing up, the Judge said it was the Crown's case "that from the outsetSkye Brown had a common intention with Aiden Roberts and Mr Sew-Hoy to rob[the complainant]". After the summing up, the Crown raised this description with theJudge. On its behalf, Ms Pollett submitted the common intention to rob the44 At [21].45 At [26].46 This issue was reached on the question trail only once the jury had concluded Ms Brown hadformed a common intention with Mr Roberts or Mr Sew-Hoy, or both to rob the complainant.complainant did not need to be formed as soon as Ms Brown interacted with thecomplainant; rather, it might have been formed later — at the beach, for example.[49] The Judge recalled the jury and after addressing another point, said:The other point was that I said that the Crown case was that the commonintention, which we discussed, was formed right from the outset whenSkye Brown got into [the complainant]'s vehicle. That was not an accuratestatement because common intention, a meeting of minds, does not have to beformed from the outset and can be formed at any stage of the continuum priorto the actual taking of the items. So that is the Crown position in relation tothis, that at some point along that continuum there was a common intentionformed to rob [the complainant].[50] Mr Dutch takes no issue with the correctness of the direction as a matter oflaw. However, he contends the direction was unfair as it did not accurately capturethe Crown's case. Mr Dutch says the Crown's closing advanced the formation of thecommon intention from Ms Brown's first interaction with the complainant, whichMr Dutch had argued was improbable given the chance encounter at the roundabout.Mr Dutch therefore says the direction undermined Ms Brown's case.[51] Early in her closing address, Ms Pollett said Ms Brown instigated theoffending. She said that Ms Brown "put these events in motion when she got into[the complainant's] car at the roundabout and told him to travel to the Welcome BayCaltex". This remark could perhaps be understood as implying the common intentionarose when Ms Brown got into the complainant's car. However, later in her (short)address, Ms Pollett said:What a robbery is, ladies and gentlemen, is a theft accompanied by a threat ofviolence and so that of course is what we have here. So there needs to be ameeting of the minds. So it doesn't mean that Skye Brown orManaia Sew-Hoy have to threaten [the complainant], it means that they're allpart and parcel of that common intention or joint enterprise to take somethingoff him for the threat of violence.It's a meeting of the minds and when that, the meeting of the minds occurs, asit did here I suggest, is Skye Brown is probably responsible for taking morethan the car but at the very least the car and Manaia Sew-Hoy is responsiblefor the car being taken as well in the ways that he acted at a minimum andyou'll see that in the charge list and your – so you've got the $240 cash, you'vegot the driver's licence, the GPS (inaudible 10:23:36) that's in the car and hisphone of course where he had no phone, no car, and of course the cash thatwas transferred.So it doesn't matter, ladies and gentlemen, who physically took these things.What matters is that they were, it's a, together it is a joint enterprise or acommon intention by them all to rob [the complainant] and so we know thatAiden Roberts took that car and if you, Manaia Sew-Hoy is to be believed thatit was flicked off for some meth and cash and we know that the vehicle wassubsequently found in Hamilton with changed number plates and things likethat. But for Skye Brown, she was there, she was aware of the threat, sheknew that something was going to be taken. Aiden Roberts, he said, took hisvape, the chargers for his phone, and everything that was there in it.And so it seems a little bit unclear as to what the defence is to that charge ofaggravated robbery. You'll hear, of course it's a matter for you, but certainlyAiden Roberts, Manaia Sew-Hoy, Dom, and Skye Brown were there under thethree when the big guy said, "you're lucky you don't get spread alongPāpāmoa Beach chopped up" and he said that under the tree. They were allpresent at that point. They were all present in Pāpāmoa.[52] These remarks — particularly the last paragraph — imply the Crown was notwedded to the proposition the common intention was formed when Ms Brown got intothe complainant's car at the roundabout. Rather, and as Ms Pollett observed to theJudge, it appears the Crown acknowledged the common intention might have arisenlater; most obviously, at the beach. For this reason, we see nothing unfair about thesupplementary direction.[53] In any event, we consider the direction could not have given rise to amiscarriage of justice. It did nothing more than educate the jury about when, as amatter of law, the common intention needed to have been formed.The communication assistant's interventions[54] A communication assistant was appointed for the complainant, given hisdisability. Mr Dutch invites attention to three interventions by the communicationassistant during the cross-examination of the complainant, including by Mr Roose.Intervention 1:Q. It was your decision which way you went at this roundabout?COMMUNICATION ASSISTANT ADDRESSES THE COURT – PUTAS QUESTION RATHER THAN STATEMENT (11:12:57)CROSS-EXAMINATION CONTINUES: MR DUTCHQ. Did you decide to go to the Welcome Bay gas station at that roundabout?A. Um, no Skye told me to go there so I went there.Intervention 2:Q. Skye didn't make any threats this day?A. No.COMMUNICATION [ASSISTANT] ADDRESSES THE COURT –POSE AS QUESTIONS RATHER THAN STATEMENTS (11:31:12)CROSS-EXAMINATION CONTINUES: MR DUTCHQ. Did the big guy transfer the money on your phone –MS POLLETT ADDRESSES THE COURT (11:32:02)THE COURT ADDRESSES MR DUTCHCROSS-EXAMINATION CONTINUES: MR DUTCHQ. Did Skye threaten you?A. No.Intervention 3:Q. So this is the same guy that went and go[t] the money out [of] the ATMisn't it.A. Yes.COMMUNICATION ASSISTANT ADDRESSES THE COURT – INFORM OF QUESTION RATHER THAN STATEMENT OF FACT(12:07:25)THE COURT ADDRESSES MR ROOSECROSS-EXAMINATION CONTINUES: MR ROOSEQ. Was that the same guy as went in and got the money out of the ATM?A. Yes.Q. The big guy, the one you called the big guy.A. Yeah.[55] In each of the interventions above, the communication assistant invited thecross-examiner to pose a question. As will be apparent, Mr Dutch and Mr Roose(who represented Mr Sew-Hoy at trial) did so, and the complainant respondedappropriately with an answer. Mr Dutch contends that because the communicationassistant did not intervene while the Crown elicited evidence from the complainant,including by use of arguably complex questions, there is a risk the jury were left "withthe opinion that the assistant had formed a view about the defendant's guilt".[56] We see nothing in the point. No concern was raised by Ms Brown andMr Sew-Hoy at trial — the obvious time to do so. The interventions appear legitimate.They were raised in a neutral way. As observed, the complainant respondedappropriately on each occasion. The Judge explained to the jury the communicationassistant's role. And, perhaps most significantly, the submission is speculative.Sentence appeals[57] Because Mr Roberts pleaded guilty, he was sentenced earlier, and by a differentJudge.47 Judge Mabey QC adopted a four-year starting point and deducted a year formitigating features. So, Mr Roberts received a sentence of three years' imprisonment.He was also ordered to pay reparation of $1,000.48[58] Judge Cameron sentenced both Ms Brown and Mr Sew-Hoy.49 He adopted athree-and-a-half-year starting point for Ms Brown,50 and a three-year starting point forMr Sew-Hoy.51 The Judge deducted 20 percent for Ms Brown's "difficultbackground".52 This left a sentence of two years and nine months' imprisonment forMs Brown.53 Mr Sew-Hoy's sentence was two years and five months'imprisonment.54 Both Ms Brown and Mr Sew-Hoy contend their sentences aremanifestly excessive.47 R v Roberts [2021] NZDC 12080.48 At [21].49 Sentencing notes, above n 3.50 At [21].51 At [23].52 At [22].53 At [22].54 At [24].[59] Mr Hall argues Mr Sew-Hoy's starting point was too high; he says it shouldhave been two years and six months. Mr Dutch takes no issue with Ms Brown'sstarting point. Rather, he contends the Judge should have discounted the sentence bymore than 20 percent for Ms Brown's background.[60] The starting point for all offenders is governed by this Court's guidelinejudgment of R v Mako.55 Mako set out a number of examples of different types ofoffending, and indicated the appropriate starting point for each. We see the offendingas falling somewhere between the aggravated robbery of a taxi driver involvingweapons or physical violence, which typically calls for starting points between four tofive years' imprisonment,56 and "a street robbery", which attracts starting points of upto three years' imprisonment.57 As Ms Mildenhall observes, the most serious featureof the offending in this case is the "cowardly targeting of a disabled or otherwiseparticularly vulnerable individual known to have items of significant value".58[61] Judge Mabey's four-year starting point for Mr Roberts is consistent with thisanalysis; so too are the starting points adopted by Judge Cameron for Ms Brown andMr Sew-Hoy. Mr Sew-Hoy presents as the least culpable of the three. His three-yearstarting point reflects this. We add the obvious: a starting point of two and a half yearswould not recognise the seriousness of Mr Sew-Hoy's offending. Mr Sew-Hoy knewthe complainant was disabled but still participated.[62] We agree with Mr Dutch that Ms Brown's cultural report reveals "significantmaterial deprivation". It is not necessary to elaborate. However, we do not accept theJudge erred in adopting a 20 per cent discount. This Court has emphasised discountsin this context are fact-specific and may be constrained by the relative seriousness ofthe offending.59 The level of discount Judge Cameron applied is also consistent withbroadly similar cases. For example, in Poi v R, the Court held a 20 percent discountwould appropriately recognise a background of severe deprivation in relation to oneof the appellants, and concrete rehabilitative efforts by him.6055 R v Mako [2000] 2 NZLR 170 (CA).56 At [57].57 At [59].58 At [41].59 Carr v R [2020] NZCA 357 at [63] and [65].60 Poi v R [2020] NZCA 312 at [39].Result[63] The extension of time in CA204/2022 is granted.[64] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent